Be Careful What You “Like”: The Lack of First Amendment Protection

While the First Amendment protects most statements you make, “liking” something on Facebook does not constitute protected speech. This April, Judge Jackson of the U.S. District Court in Norfolk, Virginia, ruled that clicking the Facebook “Like” button is not protected under the First Amendment. In that case, a deputy sheriff, Daniel Ray Carter, lost his job after he “Liked” his boss’ rival in the approaching election for sheriff. After his boss won reelection, he fired Carter. So Carter brought the case to court. The judge dismissed the case, ruling that clicking the “Like” button was not protected speech.

Now, Facebook and the American Civil Liberties Union have filed Amicus Curiae briefs in appeal of the judges’s ruling. The ACLU argues that when someone presses buttons on a keyboard, the end result is the same as one expressing those thoughts by writing out the words or stating them out loud. Either way, one is telling the world about one’s personal beliefs, interests, and opinions. Facebook is similarly arguing that “If Carter had stood on a street corner and announced, ‘I like Jim Adams for Hampton sheriff,’ there would be no dispute that his statement was constitutionally protected speech.”

The arguments against a “Like” being considered free speech involve the ambiguity of such actions in the social media world. It is difficult to equate such actions with protected statements under the First Amendment. The judge believed that merely “liking” a Facebook page is insufficient speech to merit constitutional protection, as it does not necessarily imply any substantive statement.

Nevertheless, it is uncertain whether speech needs to be articulate in order to qualify for First Amendment protection. The plaintiffs in this case seem to have alleged a violation of free speech, and the case should not have been dismissed without a jury trial. Because speech and expression have now migrated to the social media platform, courts must ensure that this new public space provides sufficient protection.

2 Responses to Be Careful What You “Like”: The Lack of First Amendment Protection

This is really interesting. With today’s sentencing of three women in a Russian music group to two years in prison for singing out against Putin, the importance of free speech is highlighted. Where, as above, an individual was targeted because of a political opinion he expressed, albeit in an unconventional way that is open to more than one interpretation, the purpose of protecting free speech seems to be best served by protecting one’s option to click “like”. It will be interesting to see how similar cases are treated in the future.

I saw this news story, and my primary question was: How much do we want an action to be considered speech?

Clicking on a link doesn’t seem to go as far as, say, donating money to a political campaign. When I used to go to the minor league ball games in my hometown, if your passenger side visor was down, they’d put a bumper sticker on your car. Having bumper stickers is protected speech, but what about leaving a visor down?